A new Beacon Hill bill wants to add new word to a 1600s colonial ordinance to open public access to Massachusetts’ vast beaches.
Senate Bill S.511 and its House counterpart H.908 seek to add the word “recreation” to Section One of Chapter 91. Recreation is defined as “the use of land for relaxation, exercise, water sports or other enjoyable pastimes.
The proposed legislation would not remove private beaches or take land away from shoreline owners, it would only open up access to the intertidal zone for people to sunbathe or walk along the water.
Each coastal state governs its use of the tides, the legal term for all land beneath the waters of the ocean, by the Doctrine of Public Trust, a legal principle rooted in Roman law that certain natural and cultural resources are preserved for public use and that the government owns and must protect and maintain resources for public use. The doctrine is commonly used in relation to bodies of water.
In colonial times, the Massachusetts Bay Colony followed the doctrine until colonial legislators decided to transfer ownership of certain tidal areas to coastal landowners, to encourage the construction of private docks in the areas called “intertidal flats”, or the area between the high and low tide lines. by “colonial ordinances in 1641-1647”.
The ordinances “moved the line between public and private property to the low water mark, but no farther off the high water mark than ‘100 perches,’ or 1,650 feet.
“This intertidal zone (now called ‘private tides’) is presumed to belong to the upland owner, unless legal documentation proves otherwise for a given parcel,” the state of Massachusetts website states.
These ordinances give private citizens the ability to own land up to the low tide line, allowing them to exclude the public from the intertidal zone – creating private beaches.
Members of the public have certain rights on private tides, such as fishing, poultry hunting, and boating, but are prohibited from any recreational activity such as walking or sunbathing.
There is one narrow exception to the rule – the public is allowed to swim in the intertidal zone provided the swimmer “does not touch the private land below, or use it to enter or exit the water”, according to the state website.
Massachusetts colonial ordinances are significantly more restrictive than beach access rights in states like Oregon, Hawaii, Texas, and North Carolina, among others.
Oregon established a permanent public easement for access and recreation along the ocean shore, regardless of ownership with its 1967 Beach Bill, prohibiting anyone from owning the beach. This bill was imitated in the Texas Open Beaches Act, which gives the public unlimited free access to Texas beaches.
All beaches in Hawaii are public property and no part of them can be private. Landowners are even required to maintain vegetation on their property to ensure public access to the shoreline.
Speaking to The Times by phone, State Sen. Julian Cyr, D-Truro, said the intent of the bill was to update colonial laws for modern times.
“What we ended up with today is a bit of a perversion of colonial ordinances,” Cyr said. “By clarifying the intent of the law, we hope to continue this very proud tradition of ocean access… We must protect public access to shared resources, and that is especially true on the island, and my neck of the woods.”
He added that the climate crisis is redefining what beach boundaries really are.
Local fisherman Doug Asselin, who also works at Dick’s Bait and Tackle, told The Times that situations can be tricky, and he’s had bad experiences with people telling him to leave their property, even when he’s carrying his rod. to fishing, but said the use of beaches is a two-way street.
He stressed the importance for fishermen to respect people’s property and to use common sense, such as not tearing down dirt roads and leaving headlights on. Plus, he said, there are plenty of times he goes out fishing and picks up trash and empty beer cans. “Keep in mind that we are lucky to go to these places,” Asselin said. “We want this to work for everyone.”
Jeremy Talcott, a lawyer with the Pacific Legal Foundation, a nonprofit law firm that specializes in property rights, told The Times that people should be skeptical about how the law could change property lines and that landowners could be compensated. “I think the biggest issue for coastal landowners is that this is a complete redefinition of their property rights,” Talcott said. “By adding recreation, you greatly expand the reach of the public on this private property.”
The accesses to the tidal zones are at the center of a litigation for more than two decades between the Harborside Inn in Edgartown and the Massachusetts Department of Environmental Protection. The Harborside Inn does not believe it is necessary to allow public access to a road adjacent to its property. Portions of the Harborside Inn are built on tidal filled areas, which under Chapter 91 allow public access.
The proposed bill was last referred to the environment, natural resources and agriculture committee. He held no hearings.
Also speaking to The Times by phone, State Rep. Dylan Fernandes, D-Falmouth, said he was crazy to see how restrictive ocean access laws are in Massachusetts by compared to other states like Oregon and Hawaii, and that the bill he and Cyr were trying to pass was to recognize how most people use beaches these days.
He said he had heard horror stories of people using dogs to scare people off their property or scolding someone on a casual walk.
“I strongly believe that no individual should own the ocean or the sand beneath the waves, and unfortunately in Massachusetts, because of this colonial ordinance from the 1650s, we have the most restrictions in the country,” Fernandes said.